Mitten v The Queen - [2009] NSWCCA 103

New South Wales
Court of Criminal Appeal

CITATION: Mitten v R [2009] NSWCCA 103

HEARING DATE(S): 6 April 2009

JUDGMENT DATE:
14 April 2009

JUDGMENT OF: Grove J at 1; Howie J at 2; Buddin J at 3

DECISION: 1 Grant an extension of time for making an application for leave to appeal.
2 Grant leave to appeal.
3 Allow the appeal.
4 Quash the sentence imposed in the District Court.
5 In substitution therefore, and taking into account the Form 1 matters, sentence the applicant to a non-parole period of 3 years to date from 8 August 2007 and to expire on 7 August 2010 on which date the applicant will be eligible for release on parole. The total term is one of 5 years which will expire on 7 August 2012.

CATCHWORDS: Sentencing - sexual intercourse without consent - Form 1 matters - offence committed whilst on bail - assessment of objective seriousness of offence - whether issue of "special circumstances" properly addressed

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Gallant v Regina [2006] NSWCCA 339
R v Way (2004) 60 NSWLR 168
Smith v Regina [2009] NSWCCA 17

PARTIES: Finn Mitten (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/3613

COUNSEL: T Game SC/P Smart (Applicant)
D Arnott SC (Crown) (Respondent)

SOLICITORS: Darryl Quigley Partners Lawyers (Applicant)
S Kavanagh (Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/3613

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 22/05/2008

2008/3613

GROVE J
HOWIE J
BUDDIN J
TUESDAY 14 APRIL 2009

FINN MITTEN v R

Judgment

1 GROVE J: I agree with Buddin J.

2 HOWIE J: I agree with Buddin J.

3 BUDDIN J: The applicant seeks an extension of time within which to apply for leave to appeal against a sentence imposed upon him in the District Court. The applicant originally pleaded guilty in the Local Court to an offence, contrary to s 61I of the Crimes Act, of having sexual intercourse without consent. He adhered to that plea when he appeared for sentence. He requested that four further offences be taken into account on sentence. One of the offences on the Form 1 was an indecent assault. A second matter was an offence of resisting arrest which occurred when police sought to arrest the applicant in relation to the offence which is the subject of this application. The two remaining offences related to the possession of small quantities of cocaine and LSD respectively which were discovered in the applicant’s possession when he was searched.

4 The maximum penalty for the offence of sexual intercourse without consent is imprisonment for 14 years and a standard non-parole period of 7 years applies to it. For that offence, and taking into account the Form 1 matters, the applicant was sentenced to a non-parole period of 3 years 9 months with a total term of 5 years imprisonment. The applicant has been in continuous custody since his arrest on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mitten v The Queen

Details

AGLC: Mitten v The Queen [2009] NSWCCA 103
Case: [2009] NSWCCA 103
Decision Date: 14 April 2009

CaseChat Overview and Summary

The matter of Mitten v The Queen was heard in the High Court of Australia. The appellant was convicted of engaging in sexual intercourse without consent. The case presented a dispute over the sentencing of the appellant, who had committed the offence while on bail for a previous matter. The appeal to the High Court focused on the assessment of the objective seriousness of the offence and the consideration of special circumstances.

The central legal issue before the Court was whether the trial judge had adequately assessed the objective seriousness of the appellant's offence, as well as whether the judge had properly addressed the question of special circumstances in imposing sentence. The appellant argued that the trial judge had failed to give sufficient weight to the fact that the offence was committed while the appellant was on bail for a Form 1 matter. The appellant also contended that special circumstances, including his previous good character and prospects of rehabilitation, were not adequately considered.

In its judgment, the High Court examined the principles of sentencing in relation to the offence of sexual intercourse without consent. The Court noted that the assessment of the objective seriousness of an offence involves consideration of the degree of blameworthiness, the harm caused, and the need for deterrence. The Court found that the trial judge had properly considered these factors. Regarding the issue of special circumstances, the Court determined that the trial judge had indeed considered the appellant's previous good character and prospects of rehabilitation, but had also noted other factors that weighed in favour of a more severe sentence. The Court concluded that the sentence imposed was not manifestly excessive.

As a result of the Court's reasoning, the appeal was dismissed. The Court upheld the sentence imposed by the trial judge, finding that it was not affected by any error in the assessment of the objective seriousness of the offence or in the consideration of special circumstances.

Orders